Saturday, June 13, 2020

Translation - Section 7 - Tort Liability - Civil Code - People's Republic of China

Civil Code, China's landmark law to protect people's rights ...


 We translated the December 2019 Third Discussion draft of the tort law section. In haste to make the work available we conformed the numbers but had not yet scrutinized the draft as passed to confirm conformity.  Jeremy Daum at China Law Translate made use of our draft and has now posted the tort liability provisions of the comprehensive new civil law code. Code Section 7 begins at Article 1164.  - gwc  June 18, 2020


China's National People's Congress on May 28, 2020, passed the long in gestation Civil Law Code.  I have translated the Third Discussion draft posted in December 2019 which has been passed with amendments not yet incorporated in our translation.  Our Article #'s conform to the version passed by the NPC.   
Comments and corrections are welcome. We will post and update which conforms entirely to the final version.  We have found no substantial doctrinal changes in the newly passed law which is effective January 1, 2021. - GWC 

 See below for SSRN link to our translation of Section 7 Tort Liability 第七编 侵权责任 

Contemporary Chinese law began afresh in 1978 with the policy of “reform and opening” announced by Deng Xiaoping, who from 1977 to 1992 was the most prominent of the Chinese leaders, though he never became President or Chairman of the CP. After a half century of war, invasion, and revolution Deng was the architect of a policy of modernization. Universities returned to normal, and China began its rapid economic rise. Important to Deng’s program was the normalization of the legal system which had nearly collapsed.

In 1986 the legislature – the National People’s Congress adopted the General Principles of Civil Law. embraced a broad swath basic principles of civil law, including liability in tort. Over the next fifteen years law schools were builtaw and progress in the professionalization of the courts was marked as the country adopted laws that brought it into conformity with the international trade system

But Chinese legal academic leaders traced their emerging law to Germany via Japan and Russia (then the USSR). So their aspiration was to adopt a comprehensive civil code. In 2002 a discussion draft was circulated and moved toward legislative consideration. One Section of that draft civil code dealt with tort liability. But controversy – particularly regarding the law of property – stalled consideration of the tort section of the civil code. I commented on the development of the law of tort and translated the draft code. It was published as A New Tort Code emerges in China An introduction to the discussion and a Translation of Chapter 8 - Tort Law of the Official Discussion Draft of the Proposed Revised Civil Code, 30 Fordham International Law Journal 935 (2007) 

In 2009 the National People’s Congress passed the Tort Law [WIPO translation] as a stand-alone law. That law has been the basic framework of China’s tort law since then. But it should be recognized that causes of action are typically grounded in specific laws such as the Traffic Safety Law, the Environmental Protection Law, etc.  

The 2009 tort law has, of course, been the subject of commentary.  See Mo Zhang, Introduction to Chinese Torts Law (2014); Benjamin L. Liebman, Malpractice Mobs: Medical Dispute Resolution in China, 113 Colum L. Rev. 181 (2013) and   Wei Zhang Understanding the Law of Torts in China: A Political Economy Perspective in the University of Pennsylvania Asian Law Review (2018).    But a meaningful survey of that literature will await another day.  See also Mark Jia, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Ħǻřv. Ŀ. Řěv. 2213 (2016)

The basic model that China’s legal authorities have in mind is the Continental civil law best exemplified by the German Civil Code. Development of the comprehensive code progressed slowly. It was intended not to transform the civil law but to provide a foundation for the law as it was in fact being developed by the steadily advancing array of statutory law. In 2017 the first section of the Code was passed as Basic Principles. In May 2020 the National People’s Congress met during the twin crises of instability in Hong Kong and the covid19 pandemic. It passed the comprehensive civil code.

o Although it made few substantive changes, the Civil Code formally abolished and replaced the elements which had previously been passed as stand-alone items. They include:
o Marriage Law [婚姻法]
o Inheritance Law [继承法]
o General Principles of Civil Law [民法通则]
o Adoption Law [收养法]
o Guaranty Law [担保法]
o Contracts Law [合同法]
o Rights in Rem Law [物权法]
o Tort Liability Law [侵权责任法]
o General Provisions of Civil Law [民法总则]

This translation is to my knowledge the first of China’s Civil Code Section 7 – Tort Liability, which I style (in order to capture the Chinese more accurately) “responsibility for infringement of the rights of others”.

- GWC June 10, 2020


Conk, George W., Translation: Tort Liability – Section 7 – Civil Code of the People’S Republic of China (June 11, 2020). Fordham Law Legal Studies Research Paper No. 3624921. Available at SSRN: https://ssrn.com/abstract=3624921
[I am grateful for editorial suggestions and proof-reading by Professor Du Ying, Central University of Finance and Economics, Beijing. Errors are mine.]

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